Glossary: - Washington



APPENDIX A

GLOSSARY OF TERMINOLOGY

FOR WATER RIGHTS

Abandonment: At common law, a water right is abandoned when there is an intentional non-use of water or a voluntary relinquishment of a water right. Abandonment can be difficult to prove, both because a showing of long-term non-use is only evidence of abandonment, not abandonment per se, and because the courts require a relatively high standard of proof. (AG’s “Introduction to Washington Water Law”, page VI-9 and VI-10.) A water right can also be lost through non-use under the related, but distinct, statutory principles of relinquishment and forfeiture (see “Relinquishment” below).

Attributes of a water right: This report uses the term “attributes” to refer to the basic elements and conditions of a water right:

← Priority date (effective date of right)

← Fixed point of withdrawal or diversion

← Source

← Quantities (both instantaneous and annual)

← Place of use

← Purpose of use

← Period of use (time of year when the water right can be exercised)

← Additional conditions (such as use of metering device or fish screens)

(Ecology’s “Water Right Adjudication Process: A Primer,” page 2; Ecology’s “Focus on Assessing Your Water Right,” page 1.)

Beneficial use: Under a water right, the water must be put to “beneficial use,” which refers to a reasonable quantity of water applied to a non-wasteful use, such as irrigation, domestic water supply, industry and power generation. (Ecology’s “FAQ: Water Rights in Washington,” page 1.)

Certificate: A certificate is the final document in the administrative process for obtaining a water right (the administrative process applies to water rights that post-date the state’s water codes). Ecology issues a water certificate after confirming that all the conditions of the permit have been met. A certificate is the legal record of a water right, and is recorded at the county auditor’s office. (Ecology’s “FAQ: Water Rights in Washington,” page 1.) An adjudicated certificate of water right is the final document issued by Ecology to a water right claimant who has been confirmed a water right by a court in a stream adjudication.

Claim (or “historic claim”): A water right claim is a statement of a beneficial use of water that began prior to 1917 for surface water and prior to 1945 for ground water. The validity of an historic claim can be confirmed only through a general adjudication in superior court. (Ecology’s “FAQ: Water Rights in Washington,” page 1; Ecology’s “Q&A: Water Right Claims,” page 1.) (Note: In some contexts, the word “claim” can have a broader meaning as applying to all rights asserted in a general adjudication, whether a historic claim or a permit or certificate, but in this report the word is used in the more limited sense.)

General water right adjudication (or “general adjudication”): A general adjudication is a judicial proceeding under which all those asserting a right to use water from a specific water source are joined in a single action to determine the rights and priorities for the use of water from that source. The general adjudications thus often cover broad geographical areas, such as an entire river system or water basin. A general adjudication is the judicial process by which a superior court confirms or denies the current validity of water right claims, permits, and certificates, and the court sets limits based on the extent to which the water is being put to beneficial use. (Ecology’s “Water Right Adjudication Process: A Primer,” page 1; AG’s “Introduction to Washington Water Law,” page IV-5; Ecology’s “Focus on Assessing Your Water Right,” page 3.)

Historic claim: See definition above for “claim.”

Junior water right: Between two competing water rights, the right with the lower priority (more recent date) is the junior water right. The water right with the higher priority (earlier priority date) is the senior water right. In general, when there is not enough water available for all users, water is withheld first from the most junior water right. (AG’s “Introduction to Washington Water Law,” page III-25.)

Permit: A water permit is a preliminary document issued by Ecology under the administrative process for obtaining a water right (the administrative process applies to water rights that post-date the state’s water codes). A permit signifies Ecology’s approval for a water user to take steps to develop a water right by constructing the water system and start putting the water to beneficial use. A water permit is not a final water right. Ecology uses the following criteria for issuing a permit:

1. 1. The water must be put to beneficial use.

2. 2. There must be no impairment (harmful effects) to existing rights.

3. 3. Water must be available.

4. 4. The water use must be in the public interest.

(Ecology’s “FAQ: Water Rights in Washington,” pages 1-2.)

Relinquishment: By statute, relinquishment refers to a process under which a water right may be wholly or partially lost through extended periods of non-use (“use it or lose it”). A water right is relinquished through a statutory forfeiture procedure based on a voluntary failure to continuously use appropriated water for five or more consecutive years unless sufficient cause is shown. Conditions constituting sufficient cause, including drought conditions, are set forth in RCW 90.14.140. Statutory relinquishment/forfeiture proceedings supplement the pre-existing common law theory of abandonment (see definition of “Abandonment” above). Relinquishment, however, can be based on proof of non-use, while common law abandonment requires an actual intent to abandon. (Ecology’s “Focus: Water Right Relinquishment,” pages 1-2; AG’s “Introduction to Washington Water Law,” pages VI-3 through VI-4.)

Senior water right: Between two competing water rights, the water right with the higher priority (earlier priority date) is the senior water right. The water right with the lower priority (more recent priority date) is the junior water right. (AG’s “Introduction to Washington Water Law,” page III-25.)

Water right: A water right is a legal authorization to use a certain amount of public water for a designated purpose. A water right is a vested property interest to the extent that the appropriator diverts and applies the water to a beneficial use.

A water right is necessary to divert or withdraw any amount of water for any use from:

1. • Surface waters (water located above ground) such as lakes, rivers, streams and springs.

• Ground waters, except uses of 5000 gallons per day or less for stock watering, single or group domestic purposes, industrial purposes, or watering a lawn or non-commercial garden that is not larger than one-half acre.

(AG’s “Introduction to Washington Water Law,” page VI-1; Ecology’s “FAQ: Water Rights in Washington,” page 1.)

References:

“Introduction to Washington Water Law” (publication of Attorney General’s Office)



“FAQ: Water Rights in Washington” (Ecology publication # 96-1804-S&WR)



“Washington Water Laws: A Primer” (Ecology publication # WR-98-152)



“Water Right Adjudication Process: A Primer” (Ecology publication # WR-98-151)



“Focus on Assessing Your Water Right” (Ecology publication # 97-1804-WR)



“Questions & Answers: Water Right Claims” (Ecology publication #97-2022-S&WR)



“Focus: Water Right Relinquishment” (Ecology publication # 98-1812-WR)



................
................

In order to avoid copyright disputes, this page is only a partial summary.

Google Online Preview   Download